(MITCHELL) - The city of Mitchell has filed a complaint for declaratory judgement to determine if the city owes council member Everett Ferrel back pay from January 1, 2008 through December, 31, 2011.

That is when there was a controversy on if Ferrel lived within the city limits and if he was eligible to serve on the city council.

According to the court document the back pay would total $12,250.

Attorney Chris Burton is representing the city, because City Attorney Byron Steele had a conflict of interest. Steele has assisted Ferrel with legal advice in the past.

No trail date has been set.

The complaint states says Ferrel was first elected Fourth District council member in 2003. He was re-elected in 2007. The complaint says Ferrel's home was within the Fourth District on "all county precinct maps, voting district maps, maps of the Election Division and plats of voting precincts."

But in late 2008, Ferrel found out that his home was not within the city limits and informed then Mayor Dan Terrell of the fact. At a city council meeting Terrell, told the council he had to follow Indiana law and because Ferrel did not live within the district he represented he would have to forfeit his seat on the council. He then declared Ferrel's seat vacant.

But according to the paperwork filed by Burton, Terrell did not have the legal right to declare Ferrel's seat vacant.

According to Burton there is only two ways to declare a seat vacant and those are:

If a council expels a member for violation of duty, or because the elected official can no longer perform his duties.

The second is for a prosecutor to file legal action against a person who unlawfully claims to hold or exercise public office.

According to Burton none of those were done.

Then in 2008 the Mitchell City Council passed an ordinance amending a 1979 annexation, which added Ferrel's property within the city limits.

Terrel then sued the council, alleging the 2008 ordinance was against the law. A judge ruled in Terrel's favor. But the judge did not addresses the issue on if Ferrel could serve.

Ferrel continued to attend city council meetings, but the council did not recognize him as a member. He was also not paid during that period.

Afterwards, the council annexed Ferrel's property, and he was re-elected in 2011.

Ferrel says because he was never legally removed from office he deserves the pay.

The city now faces a dilemma if they don't pay Ferrel he could file a lawsuit against the city claiming he is owned the back pay. But if the city pays Ferrel, the city could be sued by someone claiming unlawful distribution of city funds.